Len, I have to agree with Lockman. We were 3 to 6 votes short of a SUPERMAJORITY last Spring. I don't think the opposition will be able to gather enough votes to pass anything they want. They may try to introduce some watered-down may-issue Chicago-excluding bill, but they won't get enough votes for it, especially if we lobby all those Reps who voted for us in May.

If we get a favorable ruling from either case, it may very well exclude any possibility of may-issue or excluding Chicago/Cook County if RTC is recognized as being a right protected by the 2A.

Me thinks may issue is about to get the boot by SCOTUS, especially if Obama gets defeated in November and the next POTUS nominates constitutional justice to the high court.

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks"
-Thomas Jefferson-

Now two flags fly above my land that really sum up how I feel. One is the colors that fly high and proud the red, the white, the blue. The other ones got a rattle snake with a simple statement made, don't tread on me, is what it says and I'll take that to my grave
-Aaron Lewis-

It sure would be nice to see a favorable ruling on this case. But IMO, it will have to go to the S.C. (and be ruled in our favor) to force the hand of the legislature in IL.

It's definitely possible that the judge adopts the ruling from People v Mimes which applies an intermediate scrutiny test to uphold the statute, describing it as a "time place and manner " restriction, not a ban. I hope not, but it's possible.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

Next, we consider the fit between the challenged AUUW provision and its substantialand important goals. Defendant complains that the AUUW statute makes it impossible forlaw-abiding citizens to carry operable and loaded firearms in public for the lawful purposeof self-defense should a confrontation with another person arise. However, the carrying ofuncased, loaded and accessible firearms in public on the street, even if for the purpose ofself-defense, poses unusual and grave dangers to the public, particularly innocent bystanderswho may be severely or fatally injured by stray bullets. Courts frequently hear casesinvolving claims of self-defense where unintended victims were shot, injured or killed. See,e.g., People v. Figueroa, 381 Ill. App. 3d 828 (2008) (the defendant asserted he acted in selfdefense when he fired a gun at rival street gang members during a car chase, but theunintended victim, a 12-year-old boy playing baseball with his younger brother, was shot inthe chest by a stray bullet and killed). Furthermore, devastating consequences have resultedwhen the bearer of a firearm shot a perceived offender or threat in public but was mistakenabout the need for self-defense. See, e.g., Daniels v. Police Board, 338 Ill. App. 3d 851

(2003) (following a car chase, an unarmed passenger, who ignored police officers’instructions to show her hands and exit the car, was shot and killed by a police officer whosaw a silver object and mistakenly thought the passenger was reaching for a gun). Even here,defendant alleged that he fired his gun at Richardson because defendant mistakenly thoughtRichardson was reaching for a gun.

Defendant argues that the challenged prohibition is not limited to individuals carryinga firearm in a sensitive place, like a school or government building. According to defendant,the Heller Court could not have intended that “sensitive places” meant everywhere exceptone’s own home, land and fixed place of business. Defendant’s argument, however, is notpersuasive. The prohibition at issue here does not criminalize the carrying of firearmseverywhere outside the individual’s home, land or fixed place of business. Rather, theprohibition impacts the individual right to self-defense based upon factors concerning bothwhere the firearm is carried and the manner in which it is carried. Specifically, if anindividual is not on his land or in his home or place of business, then the gun cannot becarried uncased, loaded and in an accessible manner.

Contrary to defendant’s assertion that the AUUW imposes a “blanket prohibition” oncarrying firearms outside the home, the statute is limited to preventing the carrying of loaded,uncased and accessible firearms in public on the street. Certainly, the prohibited place atissue here, i.e., in public on the street, is broad. Nevertheless, the prohibition is justified bythe potential deadly consequences to innocent members of the general public when someonecarrying a loaded and accessible gun is either mistaken about his need for self-defense or justa poor shot.

Defendant also argues that the challenged provisions of the AUUW statute are notnecessary to protect the public because other provisions of the Criminal Code are more thanadequate to satisfy the State’s interest in deterring the use of firearms in violent crimes.Defendant cites, for example, the State’s ability to prohibit possession of firearms by felons,the mentally ill, most minors, those possessing illegal drugs, those not complying withreasonable registration requirements, and those engaged in street-gang activity. We do notagree. As discussed above, the purpose of the AUUW statute is to advance public and policeofficer safety by eliminating the inherent threats posed by loaded and accessible firearms inpublic on the street. Certainly, the statutory prohibitions that defendant cites with approvalare necessary components of the overall scheme to achieve the statute’s goal of safety.Nevertheless, if the challenged provisions at issue here were stricken from the statute, thatomission would defeat the statute’s purpose of protecting the general public and policeofficers from the dangers of firearms in public places. Absent the challenged provisions, thestatute would fail to prevent situations where criminal conduct was not intended but resultednevertheless. See Marin, 342 Ill. App. 3d at 727.

Edited by NakPPI, 17 January 2012 - 09:46 PM.

Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

. . .if the challenged provisions at issue here were stricken from the statute, thatomission would defeat the statute's purpose of protecting the general public and policeofficers from the dangers of firearms in public places. . .

I see reference to protecting the police who are aware of the dangers and request employment in the field anyway. . . I see danger to the public since they are now all potential sheep like victims without the right of reasonable self defense by an equalizing weapon. However, I do not see the court doing its primary job, which is of course to preserve the fundamental right to defense of oneself, family and friends. I base that on:

"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men" Declaration of Independence

"All men are by nature free and independent and have certain inherent and inalienablerights among which are life, liberty and the pursuit of happiness. To secure theserights . . . governments are instituted among men. . ." Illinois Constitution 1970 Article 1, Section 1 (right up front)

The judge has forgotten or ignored the true function of government made clear in the our first founding document and the Illinois Constitution. "to secure these Rights, Governments are instituted among Men". Notwithstanding the phrase later in IL Const. Art. 1, Sec. 22, Subject to the police powers, the right of the individual citizen to keep and bear arms shall not be infringed.

The primary function of government is not public safety, but rather, to secure these Rights...! I am not saying that public safety should be ignored, however you cannot pass a statute that robs a fundamental right in the name of safety! Especially when safety is reduced because the people are not able to mount an adequate defense against truly violent offenders. Not knowing whether someone might have an adequate means of self defense can be a deterrent to crime and overall increased public safety is the result.

I haven't even started on the rights secured by the Ninth amendment to the US Const. or the Art. 1 Sec. 24 of IL Const, rights retained.

BTW, NakPPI, I realize you are not defending the court, but making the point that the court could just simply choose follow the previous case...

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.--Thomas Jefferson to I. Tiffany, 1819

Remember that Mimes is a First District case. (Chicago) While I disagree with the analysis, I think that the statutory intent is unconstitutional from inception, Judge Lampkin is highly respected and this was a unanimous decision. So a Federal judge could adopt this opinion without hesitation.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

...Defendant also argues that the challenged provisions of the AUUW statute are notnecessary to protect the public because other provisions of the Criminal Code are more thanadequate to satisfy the State’s interest in deterring the use of firearms in violent crimes.Defendant cites, for example, the State’s ability to prohibit possession of firearms by felons,the mentally ill, most minors, those possessing illegal drugs, those not complying withreasonable registration requirements, and those engaged in street-gang activity. We do notagree. As discussed above, the purpose of the AUUW statute is to advance public and policeofficer safety by eliminating the inherent threats posed by loaded and accessible firearms inpublic on the street. Certainly, the statutory prohibitions that defendant cites with approvalare necessary components of the overall scheme to achieve the statute’s goal of safety.Nevertheless, if the challenged provisions at issue here were stricken from the statute, thatomission would defeat the statute’s purpose of protecting the general public and policeofficers from the dangers of firearms in public places. Absent the challenged provisions, thestatute would fail to prevent situations where criminal conduct was not intended but resultednevertheless. See Marin, 342 Ill. App. 3d at 727.

Was it Heller or McDonald that refuted this notion of the "regulatory vaccuum?" I think a SCOTUS decision would carry more weight than a state circuit court, especially is US District Court.

Edit: it was Ezell v. Chicago. Not SCOTUS, but the 7th US Circuit Court. Same principle.

The regulatory vaccuum is a different issue. Mimes is discussing the intention of the statute, not whether the removal of the statute would create "chaos" if stricken. The Court is saying that the legislators intended for ALL loaded guns to be prohibited in public, regardless of criminal intent, etc which is what the other statutes prohibit.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

So it comes down to standard of review? Does public safety outweigh an individual's right to bear arms for self defense? Can the legislative intent of protecting the public and police from loaded guns in public be achieved with less restrictive means?

It's how the judge interprets the standard. For example, judge Neville in People v. Aguilar applied intermediate scrutiny and determined that the AgUUW statute was unconstitutional.
The regulatory technique must be proportion to the interests of the State. Neville said that a ban is not proportional. Specifically, "the criminalization of all gun possession outside the home... Could have a severe effect on those too weak to protect themselves without guns... " The statute sweeps with breadth disproportionate to its legitimate purpose of improving public safety.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!

Not exactly. Under strict scrutiny the statute must be "narrowly tailored" to meet the goal. Obviously, AgUUW fails this test, as it is not tailored at all. It's a blunderbuss, pun intended.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!

The public safety claim by the state could possibly be refuted with statistics and anecdotal if admitted. For instance this Pit Bull topic and tons of murder stories in Chicago with atrocities to innocents unable to protect themselves etc. Whether it would fly or not remains to be seen.

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.--Thomas Jefferson to I. Tiffany, 1819

The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!

The public safety claim by the state could possibly be refuted with statistics and anecdotal if admitted. For instance this Pit Bull topic tons of murder stories in Chicago with atrocities to innocents unable to protect themselves etc. Whether it would fly or not remains to be seen.

Regards, Drd

Statistics don't matter for the purposes of a constitutional test. The question is based on "how important" the public policy issue is compared to how the regulation is "tailored" to meet that goal. The higher the level of inquiry, the more strict of a tailoring is required. It doesn't matter how many people are attacked by dogs or how many people are shot accidentally by negligent use of firearms.

For our purposes, the AgUUW statute was designed to prohibit the carrying of loaded guns in public to prevent accidents and to protect police officers. The question is whether prohibiting ALL loaded weapons fits with this goal under the different tests.

Judge Lampkin says that the statute is constitutional under intermediate scrutiny in People v. Mimes.Judge Neville says that the statute is unconstitutional under intermediate scrutiny in People v. Aguilar, dissenting.Judge Sykes says they're both wrong (in my opinion) and the test is heightened scrutiny pursuant to Ezell v. Chicago.

If there is a conflict as to whether AgUUW satisfies intermediate scrutiny, there is no way that it could pass heightened or strict scrutiny.

Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!

Not exactly. Under strict scrutiny the statute must be "narrowly tailored" to meet the goal. Obviously, AgUUW fails this test, as it is not tailored at all. It's a blunderbuss, pun intended.

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I went ahead and downloaded and read the People v Mimes case. At paragraph 61, referencing Heller, we read:

The Court also rejected a judge-empowering, freestanding, interest-balancinginquiry for evaluating second amendment restrictions and, in particular, for the coreprotection of an enumerated constitutional right.

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.--Thomas Jefferson to I. Tiffany, 1819

I took this from Findlaw, basically you could imagine under this test the state would always win in a second amendment case.

"The test, rather, must be one of balancing of interests. ''When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.'' Inasmuch as the interest in the restriction, the government's right to prevent political strikes and the disruption of commerce, is much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute. "

The state would say that there interest in preventing violence to the public is greater than people desiring to carry loaded guns in public...

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

I took this from Findlaw, basically you could imagine under this test the state would always win in a second amendment case.

"The test, rather, must be one of balancing of interests. ''When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.'' Inasmuch as the interest in the restriction, the government's right to prevent political strikes and the disruption of commerce, is much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute. "

The state would say that there interest in preventing violence to the public is greater than people desiring to carry loaded guns in public...

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I see how the reference is within your example. Interest balancing with regard to the state's interest and/or the individuals rights.

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.--Thomas Jefferson to I. Tiffany, 1819

It sure would be nice to see a favorable ruling on this case. But IMO, it will have to go to the S.C. (and be ruled in our favor) to force the hand of the legislature in IL.

I believe you are absolutely correct sir. We shall see. I still think some are far underestimating the strength and reach of Crook county's machine. It is an election year too. Let's not forget that important little tid-bit.

Brilliant response. Seriously. Mr. Howard is awesome. Not a single wasted word.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

Brilliant response. Seriously. Mr. Howard is awesome. Not a single wasted word.

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Yes, but what does that mean to us non-attorney folks????

I think it means that although Mr. Howard did a masterful job rebutting the motion, the judge will probalby still allow Lisa and Pat to cite "Moore vs. Madigan". They key is if it will have any impact on the judge's decision.

Tim

Are you a member of the ISRA?? If not, why not?? Join over 18,000 other Illinois gun owners in the fight for your rights!!!

The Roman Empire fell due to a large, corrupt government, overspending, an overextended military, insecure borders, and the illegal immigration of Goths, barbarians (anyone who was not educated), and religious fanatics. Sound familiar?

"..it does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people's minds.."--Samuel Adams

Brilliant response. Seriously. Mr. Howard is awesome. Not a single wasted word.

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Yes, but what does that mean to us non-attorney folks????

Mr. Howard, in a very lawyerly way, said that the Judge in Moore v. Madigan was wrong and here's why. It's funny because he spent all of 1 and a half pages to explain why Judge Myerscough's 48 page opinion was completely wrong in history and law. He basically thumbed his nose in the general direction of the Moore v. Madigan opinion. There's definitely some subtle lawyer humor in this. Think about it this way, the State just won a huge windfall in a similar case, and instead of Mr. Howard breaking down every error by Judge Myerscough, he manages to address the entire opinion in a little over a page?

In reaching its erroneous conclusion that the Second Amendment is limited to thehome, Moore asserts that the Supreme Court has not "explicitly recognized] a general right tocarry firearms in public." Slip. Op. at 28. Supreme Court precedent does, however, speakdirectly to the meaning of the right to "bear arms" in public subject to regulation, such asinvolving sensitive places. See Doc. No. 40 at 13-15. At any rate, the fact that the SupremeCourt has left an issue not wholly decided does not relieve a lower court of the duty to face thatissue squarely when properly presented in a case before it. See id. at 15-16.

The underlined part is basically a thumb in the eye of Judge Myerscough...

Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.